(251) 299-0101

State-Agent Immunity and State-Agency Immunity

Ex parte The Utilities Board of the City of Foley, Alabama, d/b/a Riviera Utilities, [Ms. 1161168, June 28, 2018] __ So. 3d __ (Ala. 2018). This per curiam opinion (Champ Lyons, Jr., Special Chief Justice, and Pamela Baschab, Jean Williams Brown, Robert Bernard Harwood, Jr., Gorman Houston, and Thomas A. Woodall, Special Justices, concur; Terry L. Butts, Special Justice, concurs in the result in part and dissents in part) grants a petition for writ of mandamus directing the Circuit Court of Baldwin County to enter summary judgment on the basis of State-agent immunity in favor of several Riviera Utilities employees in a personal injury action; the opinion denies the petition for a writ of mandamus sought on the basis of immunity by Riviera Utilities.

Charles Hilburn suffered electrocution injuries in the course of a bridge-repair project in Robertsdale (Baldwin County) when a track hoe driving steel pilings into the ground came in contact with an uninsulated overhead electrical power line. Hilburn's complaint alleged Riviera Utilities and its employees acted negligently by not insulating, de-energizing, re-routing, or employing fuses or circuit breakers to de-energize the power lines. When Hilburn filed a motion for partial summary judgment seeking a declaration that Riviera's employees were not entitled to immunity or legislative caps on damages, Riviera Utilities and the employees countered by filing motions for summary judgment as to all Hilburn's claims. The Supreme Court was accordingly confronted with de novo review of the Baldwin County Circuit Court order denying the motions for summary judgment.

The Court first notes that denials of motions for summary judgment grounded on claims of immunity are reviewable by petitions for writs of mandamus. Ms. *9 (citing Ex parte Purvis, 689 So. 2d 794 (Ala. 1996), and Ex parte Yancey, 8 So. 3d 299 (Ala. 2008)).

The Court next reiterates the test for State-agent immunity first articulated in Ex parte Cranman, 792 So. 2d 392 (Ala. 2000), and then adopted in Ex parte Butts, 775 So. 2d 173 (Ala. 2000). Ms. *12-23, noting that State-agent immunity extends to municipal employees per City of Birmingham v. Brown, 969 So. 2d 910 (Ala. 2007).

Procedurally, the Court reiterates that a defendant asserting State-agent immunity bears the initial burden of demonstrating that the plaintiff's claims arise from a function that would entitle the State agent to immunity per Ex parte Estate of Reynolds, 946 So. 2d 450 (Ala. 2006); and if the State agent makes such a showing, the burden then shifts to the plaintiff to show that one of the exceptions to State-agent immunity recognized in Cranman is applicable per Ex parte Kennedy, 992 So. 2d 1276 (Ala. 2008).

Engaging in a Cranman analysis of the facts, the Court holds that the Riviera Utilities employee, Saucier, a risk manager, was charged with the responsibility for supervising and overseeing the daily operations of the line-locate department. Saucier's responsibilities were deemed to fall within the discretion afforded state agents in "formulating plans, policies, or designs or exercising his or her judgment in the administration of a department or agency of government." Ms. *20-21. Whether Saucier had constructive notice of the risk of serious bodily harm is irrelevant to the determination of whether he is entitled to immunity within the meaning of Cranman.

Having met the Cranman standard of entitlement to immunity, the burden shifted to Hilburn "to show, by substantial evidence, that one of the two exceptions to State-agent immunity recognized in Cranman applies." Ms. *21 (quoting Ex parte Price, [Ms. 1160956, Jan. 12, 2018], __ So. 3d __, __ (Ala. 2018)). Because there was no evidence Saucier acted "willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law," he is entitled to State-agent immunity. Ms. *21-23 (citing Cranman, 792 So. 2d at 405). Mere evidence that Saucier engaged in a tort no longer supports the view that committing a tort constitutes acting beyond a State agent's authority. Ms. *23 (citing Taylor v. Shoemaker, 605 So. 2d 828 (Ala. 1992)).

The Court next evaluates Riviera Utilities' claim that as it acts as a municipal utility, it is a governmental entity entitled to substantive immunity. Ms. *24-25. Citing Bill Salter Advertising, Inc. v. City of Atmore, 79 So. 2d 646 (Ala. 2010), the duties owed by Riviera Utilities were not to the general public, but to the employees working on the bridge reconstruction project, i.e., protecting them from the risk of harm from the overhead power lines. The Court concludes that "because the Hilburns' claims against Riviera Utilities did not involve actions that took place within the city limits of Foley, Riviera Utilities clearly is not entitled to substantive immunity." Ms. *26. While Riviera Utilities may ultimately be able to avail itself of the statutory cap on damages afforded a governmental authority by § 11-93-2, Ala. Code 1975, its claim that it is entitled to a summary judgment on the basis of substantive immunity was properly denied by the Baldwin Circuit Court. Ms. *27.

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